According to Hart, law is essentially a system of rules, identified and prioritised by the "rule of recognition". When the rules run out, he said, the judge has discretion to decide the case. The most cogent criticisms of this view came from Ronald Dworkin, who said that law contains not only rules but also principles: in "hard cases" where the rules do not cover a particular situation, or give an unacceptable answer, the judge must be guided by principles. Such principles are not external to the legal system and used just for guidance, as Hart would claim: rather, they are an integral part of the system. A judge need not follow principles rigidly - if he did they would be rules - but he must take them into account when exercising his discretion. A judge who departs from principles too often will find many of his decisions reversed on appeal, and to that extent would evidently be making wrong decisions. Lawyers and even students think it meaningful to say "The House of Lords reached the wrong decision in such-and-such a case", even though the decision did not directly break any pre-existing rule.
The first kind of hard case is illustrated by McLoughlin v O'Brian [1982] 2 All ER 298, in which the House of Lords for the first time awarded damages for nervous shock to a woman who had seen the battered bodies of her husband and children not at the scene of the road accident in which they were injured, but some time afterwards. Strict positivism would say that up to that time there was no law covering such a situation, and that the judges simply used their discretion (which is very wide in tort, where "reasonable foreseeability" allows judges a great deal of space) to make new law which they then applied retrospectively to her claim. Dworkin dismissed this idea, and said the judges' speeches clearly showed that they saw themselves not as exercising discretion but as seeking out and applying certain principles running through the law in general and the law of negligence in particular.
RONALD DWORKIN
As an illustration of the second kind of hard case Dworkin used the case of Riggs v Palmer (1889) 115 NY 506, in which a New York court had to decide whether a man who had murdered his grandfather could take his inheritance under the victim's will. The rules of succession were apparently clear, but the judges cited repeatedly the principle that "no one should profit from his own wrong" and held that this overrode the provisions of the will, balancing this against the principle calling for a literal interpretation of the statute. The written rules, they said, were subject to certain overriding principles, and the legislature "could not possibly" have intended the murderer to inherit.
JUDICIAL DISCRETION
According to Hart, judges are bound to follow the legal rules that exist but have total discretion (guided only by their own sense of morality or public policy) in cases where the rules provide no clear answer. Once the judge's discretion comes into play, we can no longer speak of his being bound by any particular standards, even though we may refer to the standards judges characteristically apply in cases such as these. Dworkin argued that the reality was otherwise, and that in one case a judge might quite properly decline to follow a legal rule, or in another might feel bound to decide in a certain way even though no rule covered the case. A judge who habitually departs from accepted standards is likely to be reversed by the appellate court and criticised by his fellow-lawyers. A judge may not be bound to apply particular principles, but must at least take them into account. Certainly the idea of a persuasive precedent (which is clearly not a legal rule) is hard to explain in positivist terms, and gives powerful support to Dworkin's criticism. The principles that guide the judges' decisions, said Dworkin, are themselves part of the law.
There are many rules both in statute and in common law, for example, that require a judge to determine whether or not certain conduct is "reasonable", and this is something not covered by rules. The judge must therefore "exercise his discretion", but he is expected to do so in accordance with certain well-established principles. In the law of negligence, where the standard of "reasonable care" in any given situation is regarded as a matter of fact rather than of law, a judge who totally ignored the usual principles would in all likelihood be reversed and criticised by an appellate court. Similarly, s.78 of the Police And Criminal Evidence Act 1984 gives a trial judge discretion to exclude prosecution evidence, but this discretion is not unlimited. It is to be exercised, says the statute, if in the judge's opinion the admission of the evidence would have such an adverse effect on the fairness of the trial that he ought to exclude it. As a general rule the Court of Appeal declines to interfere with the judge's exercise of this discretion unless his decision was Wednesbury unreasonable, but in R v Mason [1987] 3 All ER 481 the Court quashed the judge's decision to admit a confession because they felt he had not properly taken into account the deception practised on the defendant's solicitor. Even in sentencing, where judges have considerable discretion within the statutory limits, the Court of Appeal lays down guidelines for each offence. They will not alter a sentence that differs only slightly from the guideline, but the judge's discretion is certainly not unlimited, and a sentence that is wildly out of line (even though within the rules) will be changed and (if too often repeated) the judge criticised.
Dworkin therefore argued that in determining the law a judge is constrained to act in accordance with legal principle, and is not (as Hart suggested) free to use his discretion in any way he chooses. He uses an analogy of a sergeant told to select his five most experienced soldiers, and another of a boxing referee told to award the fight to the more aggressive boxer, and says that although the sergeant and the referee are called upon to exercise their judgement the criteria on which they are to do so are clear, and they certainly do not have the total discretion envisaged by Hart's theory of law. Judges should not have such wide discretion either: if a judge is free to choose without restraint whether to benefit P at D's expense or vice versa, the law is reduced to a kind of lottery. What we surely expect a judge to do is to enforce the pre-existing rights of one against the other, and where those rights are not clearly spelled out by the rules of law, we expect him at least to apply certain established legal principles.
Originally, Hart said law was incomplete and that penumbral cases were decided by reference to social aims, not by "drawing out" unknown legal principles already there. Dworkin condemned this as giving approval to retroactive legislation by unelected judges. Hart himself later conceded that judges even in hard cases do not simply legislate de novo but proceed by analogy, or by considering general principles or general aims. Similarly in relation to Hart's hypothetical question about the power of one Parliament seeks to bind its successors: we shall not know the rule, said Hart, unless and until this occurs, and the decision of the judges will demonstrate the content of the rule of recognition. Lawyers and judges may differ as to the rule in a situation such as this, replied Dworkin, but nearly all would agree that there is a binding rule and that the judges ought to decide in accordance with what they believe the rule to be, not exercise their discretion on non-legal grounds.
RULES AND PRINCIPLES
We might therefore (if we are positivists in the model of Hart) admit that principles exist, and that a judge must take them into account, but still say they are not law because their authority and weight are uncertain. But this is to presuppose the positivist case: according to Dworkin, the case for a principle does not depend on its pedigree. Rather, we establish both its authority and its weight by appealing to practice, and to judicial practice in particular. In arguing a case on principle we cite other cases (or even statutes, if we can find them) in which that principle has been cited in argument (or preferably in the judgement) as a reason for the decision ultimately reached. The use of persuasive precedents and obiter dicta cannot be explained in terms of rules alone, since they are not rules, but is common practice in establishing principles.
Alternatively, a positivist might say that if principles really are part of the legal system, they are just rules of a slightly different kind and so can be brought within the framework of an expanded rule of recognition. Legal principles cannot be validated by pedigree, however: they are "valid" because they are felt to be appropriate by society and, in particular, by the judges. The rule of recognition cannot bring them in except by saying that they are those principles which society regards as legally binding, and that is a circular definition which helps not at all and, worse, gives each principle an independent standing comparable with that of the rule of recognition itself. The inclusion of principles within the rule of recognition would therefore involve a departure from a rule of recognition based strictly on pedigree, since it would involve an examination of the content of the principle in order to assess its validity.
Rules of law cannot conflict: any rule of recognition must necessarily include some test for determining which (if either) of two apparently conflicting rules is valid. In English law, for example, a later statute supersedes an earlier, a statute takes precedence over a common law rule, and directly applicable European law takes precedence even over Acts of Parliament. But there is no limit on conflicting principles. Suppose, for example, that we regard the principle that
"no one shall profit from his own wrong" as a rule of law. We see immediately that there are exceptions to this "rule" - the doctrine of adverse possession, for example - and we seek to explain them. In terms of rules this is not easy, but in terms of principles it is simply a matter of setting that principle against another (and, in this case, weightier) that "stability and certainty of land tenure is to be promoted".
This leads into a further difference between rules and principles, that principles are not conclusive in the way that rules are, but have rather to be weighed in most cases against other contrary principles. Even binding principles cannot conclusively determine a result. Positivists say therefore that the judge (having considered the principles) is free to exercise his discretion as he thinks fit, but Dworkin argued that the judge is bound to apply the set of principles that after conscientious thought he believes to be the stronger. The fact that principles are not conclusive means simply that they are not rules, not that they are not part of the legal system.
In support of Dworkin's view is the fact that the principles and policies that guide judges' decisions are numerous and constantly changing. In R v R (rape - marital exemption) [1991] 4 All ER 481 the House of Lords clearly took into account a twentieth-century principle (not expressly stated anywhere as a rule of law) concerning a woman's autonomy over her own body. This principle (and others) they then weighed against the very strong principle of stare decisis (not against the marital exemption rule itself, as some would argue) and decided that the greater weight was in favour of removing the exemption. In a similar way, Riggs v Palmer is explained not by saying that the principle overrode the rule of law - if that were true, the rule would not be all-or-nothing as Dworkin argues - but by saying that the principle that statutes should be interpreted according to their plain meaning gave way to the principle that none should profit from his own wrong. It is only by an argument such as this that one can explain and justify higher courts' ability to overrule their own previous decisions: if those decisions created strictly binding rules of law one can only conclude that cases such as R v R, Riggs v Palmer and R v Shivpuri [1986] 2 All ER 334 were wrongly decided.
THEORIES OF LAW
Positivism (and legal realism) are essentially descriptive theories of law, which purport to identify what the law is without seeking to justify it. Dworkin found such theories unattractive, and argued that they do not explain or justify the power given to judges to intervene in the lives of other citizens. A proper theory of law, he felt, must include a normative aspect legitimising the principles of legal reasoning. At the least there should be a principle of democracy (leading to the rule of obedience to the elected legislature) and a principle of fairness (leading to the principle that like cases are to be treated alike and so to the doctrine of precedent). Other principles (e.g. responsibility for one's acts, or the binding nature of a promise) should be developed in particular areas.
In his book Law's Empire, Dworkin analysed three theories of law and dismissed two of them in favour of his own preference. Conventionalism (similar to Hart's positivism) and legal pragmatism (close to legal realism) he found unsatisfactory either because (he said) the first does not fit the observed facts and the second does not give sufficient attention to individual rights.
Conventionalism, said Dworkin, sees law as based on social conventions. Coercion according to law is necessary for fairness and predictability, and the rigidity of law is justified by an appeal to protected expectations. When the law runs out, however, the judge must apply policy considerations and use his discretion. This destroys the clarity and certainty that are the virtues of this "plain fact" model, and positivists acknowledge this as the unfortunate consequence of the indeterminacy of law. But conventionalism simply does not fit the facts. Lawyers regard the basic rules of law - the doctrine of precedent, say - as having an innate "rightness" not based purely on social convention, and judges pay more attention to statutes and precedents than conventionalism requires. Where the strict rules of law do not cover a particular case, the tendency of common lawyers is to argue by analogy or principle from the law that is already clear, rather than make a decision according to the desired result.
Legal pragmatism, on the other hand, seeks to justify the law in terms of the ultimate good of the community. It argues that judges should apply policy considerations to promote the good of society, regardless of earlier practice, although there is clearly a policy interest in reasonable consistency. Pragmatism practises the "noble lie" in which a judge purports to justify his decision by reference to the true intentions of Parliament and the common law, while really making whatever decision will best serve the community interest. Such a theory does not take individual rights very seriously, said Dworkin, regarding them as instruments of policy to be used as convenient, and ignores the value of political integrity. Under such a model no one really has any rights, because supposed rights can always be overridden if the judge gives priority to some other community interest. Again the theory does not match reality: Lord Denning and a few other judges have openly made decisions on policy grounds, but most judges try to find some other explanation for their decisions.
That leaves "law as integrity", which recognises consistency as an essential component of political morality, and only political morality can give the state a moral right to apply coercion. This does not presuppose a government of a specific party: we know that sensible and moral people may disagree about what is right, but we do expect them to behave consistently and not capriciously. In a similar way, we can demand that the state and its officials act according to a coherent set of principles even though citizens may legitimately differ as to just what those principles ought to be. For example, there is a clear moral difference of opinion as to the rightness of abortion. The state could act with integrity by permitting abortion on demand (even though may people would disagree with such a policy), or by prohibiting all abortion (which would be deplored by many others), or by some principled compromise such as a ban on abortion unless the continuation of pregnancy would endanger the mother's health. But if the state were to allow abortion only to mothers born in even years, it would not be acting with integrity even though pro-abortionists might think this better than no abortions at all and anti-abortionists might prefer it to abortion on demand. Legislative integrity militates against checkerboard statutes of this kind, and similarly adjudicative integrity ensures that judicial decisions are made in accordance with principle.
Dworkin's theory of "law as integrity" implies that the whole legal system must be complete and coherent. Judges do not say "There is no law on this point so we shall make some up", but rather try to justify their decisions by reference to the principles they have been able to extract from earlier cases. (How far this represents reality is a matter for debate: the decision in Shaw v DPP [1961] 2 All ER 446 has all the hallmarks of judicial legislation ab initio.) Almost everyone accepts by habit or through conviction that a judicial decision is somehow fairer if it represents the application of established standards rather than the imposition of new ones. The plaintiff in dispute with his neighbour over the ownership of land surely believes that the judge is going to apply the law that already exists (even if this is uncertain) rather than decide more or less randomly between the competing claims.
The question was debated by the House of Lords in Donoghue v Stevenson [1932] AC 562. Lord Buckmaster, dissenting from the majority decision, said the earlier common law principles of negligence should not be extended to new cases merely because a particular meritorious case seemed to fall outside them. But Lord Atkin said previous judicial decisions on negligence were to be regarded as examples rather than authorities, and that the courts could and should find new "duty of care" situations where it was appropriate to do so. This has indeed been the practice of the judiciary ever since, and even in Caparo v Dickman [1990] 1 All ER 568 the House of Lords said novel categories of negligence might be added incrementally. Extensions such as these are not new rules of law invented by the judges, but represent the application of existing principles to new cases.
ONE RIGHT ANSWER
Every legal problem, according to Dworkin, has just one right answer, and the judge's task is to discover it. The right answer is the one that is "best" in terms both of its fit with the corpus of decided cases and of its content. For example, suppose a chess player annoys his opponent by smiling at him: the rules of chess prohibit causing unreasonable annoyance to an opponent but say nothing expressly about smiling, and the referee has to make a decision as to whether it is allowed or not. The "right" answer depends on whether chess is more a form of psychological warfare or a purely analytic exercise, and the referee will decide which explanation is more consistent with the history and practice of the game. Opponents argue that since the "one right answer" can never be conclusively determined - even the House of Lords can and does overrule its own previous decisions on occasion - it does not exist except in Dworkin's imagination. But existence is independent of proof, and the fact that lawyers (and even students) can and do assert at times that a case in the House of Lords was "wrongly decided" suggests they subscribe to the view that there is a right answer there somewhere.
As a model of the judge in his interpretative role, Dworkin created Hercules, a judge of superhuman skill, learning, patience and acumen. Hercules is an idealised figment of the imagination, of course, like an ideal market in economics, or a mathematical or scientific model, and Dworkin readily admitted that he is far more reflective and self-conscious than any real judge could or should ever be. His attitude to his work depends on the society in which he operates, but he accepts the settled practices of his legal system and he accepts too (according to the doctrine of political responsibility) some general political theory that justifies these practices. In each hard case brought before him, Hercules produces theories justifying the legal rules which seem to be relevant to the case before him - a theory of mens rea in a criminal case, for example, or a theory of duties of care in a case based on negligence. He then goes deeper and produces for example a theory distinguishing criminal from tortious liability and so explains the different standards of proof &c as between the two areas of law. He constructs a scheme of abstract and concrete principles to explain the relevant precedents and he applies those principles to the case; where more than one construction is possible he chooses the one that best fits the institutional history of the community, making allowance for the extra "gravitational effect" of those decisions nearest to the present case in time or in subject matter or offer a higher level of authority. Statutes may fall outside this scheme, of course - Hercules may have to accept that Parliament has chosen to enact a particular piece of legislation running contrary to the general principles of the common law - and while he is of course bound to apply the statute where it is directly relevant he need not twist his scheme of principles to fit it. He does not explicitly set out to apply the theory of law accepted by his brother judges, but rather that theory which he himself believes to be the soundest. But he takes into account the community's view of what justice requires, and asks himself, if they differ, whether this is a case in which it would be fair for him to impose his own view over that of the community at large.
The judges, said Dworkin, are engaged in an exercise similar to the writing of a chain novel: a TV soap opera is probably an even better analogy, though perhaps not one Dworkin would have recognised. Each writer has some freedom in respect of his episodes, but must ensure that the characters act in a way consistent with their past behaviour. Subject to producing such a fit, the author may develop the story as he wishes, but some developments may be better from a literary or dramatic point of view than others, and his job is to choose the best. An episode in which all the characters were killed in a railway accident might well "fit", but would probably not be regarded as the best way of developing the story. In the same way, each interpretation of the law adds something to the legal story, but the law has an integrity of its own and the judge must ensure that his interpretation forms part of a coherent theory justifying the legal system as a whole. This requires both "fit" and "substance": Hercules' theory must fit the earlier decisions (though he may say that a small number of them were mistaken), and must also be substantially just so far as the rules of law will allow.
PRINCIPLES AND POLICIES
Dworkin's general view of law is a liberal democratic one, diametrically opposed to that of Bentham in a number of ways. He condemned utilitarianism because it ignores individual rights and the principle of "equal worth"; individual rights are not "nonsense on stilts" as Bentham would have it (nor, as Hart would suggest, the mere converse of obligations), but exist as against the state independently of any legislation creating them. This is clearly a political philosophy reflecting Dworkin's own education (in the USA and later the UK) and beliefs, but they are beliefs that would be shared by many other people of similar background. Dworkin readily admitted this, but said his aim is to define and defend a liberal theory of law rather than a universal one. He therefore demanded that the government treat people as deserving equal concern and respect, and impose no constraint depriving any citizen of a sense of equal worth. Any class or caste system that counts some members inherently less worthy than others, he said, is a system yielding no communal responsibilities and hence no moral duty to obey the law. Individual rights are fundamental, and the law should not be used to enforce private morality. Rather, the law acts as a constraint on the government and requires it to justify every use of coercive force against the individual.
Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature. The judges' role is to apply legal rules and legal principles - the latter already exist and have merely to be discovered - rather than to make legislation based on policy and affecting retrospectively the rights of the parties in the instant case. He saw it as a matter for regret that judges do sometimes claim to be applying policy considerations when in fact they are looking for legal principles, and a matter for condemnation that they sometimes apply policy in fact as well as in name. He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined. A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well-being of the community. A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension. Matters of policy should be left to the elected legislators; judges should concern themselves only with legal principles, distinguishable from merely moral principles by the fact that lawyers and others regard them as being part of the legal system.
In ordinary debate, a person who asserts that a certain decision is "a matter of principle" is generally understood to mean that the consequences are immaterial to the decision, and Dworkin's definition is similar. Principles, he says, are propositions that describe rights; policies are propositions that describe goals. Individual rights trump utilitarian goals, though in a time of major emergency (such as all-out war) it may be permissible to give goals preference over rights in order to regain or preserve a state of affairs in which principled decisions are once again possible. In general, however, judges should confine themselves to principles and rights, and leave matters of policy and goals to the elected legislature.
On the whole, the judges tend to agree with this view at least in what they say. Questions of social policy are better left to Parliament, they say, and it is not for judges to interfere in such matters.
TAKING RIGHTS SERIOUSLY
Having considered the nature of rights, we must also ask how they arise and what gives them their validity. Perhaps the most significant recent contribution to this debate was that of Ronald Dworkin, whose essay collection Taking Rights Seriously (1977) introduced a number of new arguments. Individual rights against the state, he said, are a part of the legal system to which too little attention has been given, but which in some circumstances can override positive legislation. The existence of such rights cannot of course be proved, but Dworkin saw no reason to accept the claim that no proposition is true unless it is also provable, and to that extent at least it is hard to disagree with him.
The democratic process should generally operate on a utilitarian basis, but the democratic process based on utility must be limited so as not to infringe basic individual rights. Rights trump utility, is the catchphrase. If someone has a right to something, it would be wrong for the government to deny him that right even if it might be in the public interest to do so. Individuals have rights, said Dworkin, when a collective goal is not a sufficient justification for denying them what they as individuals wish to have or to do. That characterisation of a right is, of course, formal in the sense that it does not indicate what rights people have, nor indeed guarantee that they have any. Moreover, it is necessary to make a distinction between background rights (which are largely a matter of opinion) and institutional rights established within the political or legal framework of a particular society. Legal rights, for example, are institutional rights to a favourable decision of a court in its adjudicative role.
If we believe in a right such as the right of free speech, said Dworkin, we must be prepared to give this right precedence over any claims of utility. For example, we must not try to prohibit politically inflammatory speeches unless we can show that these directly infringe some other greater right. The risk that any individual right (to security of person, for example) will be violated as a direct result of an inflammatory speech is slight, and such a speculative and marginal risk cannot outweigh a clear right. The utilitarian claim to protect the peace and public order must give way to the greater right.
Although Dworkin did not attempt to list his basic rights, he did give some indications as to how they might be identified. An individual has a (political) right to some resource or opportunity or liberty, he said, if within the political system it counts in favour of any decision that that decision is likely to advance or promote the state of affairs in which he enjoys that right even when no other aim is served by the decision and some aim may even be disserved, and conversely if it counts against a decision that the decision will retard or endanger such a state of affairs even though some other political aim is served thereby. He clearly had in mind the basic human rights guaranteed by the first eight Amendments to the US Constitution and others of a similar kind; unlike Nozick, he was unenthusiastic about a right to property.
Whether rights are absolute or whether they themselves can be restricted by some greater right is a matter for debate. The European Convention declares certain rights such as the right not to be tortured or enslaved absolute and non-derogateable, but makes most other rights conditional or subject to restriction in time of emergency. The right not to be punished under a retroactive criminal statute, for example, is conditional on the act's not having been criminal "according to general principles of international law", and even the right to life may be removed by a legal death penalty or reasonable force used in the preservation of public order. The majority of other rights listed in the Convention - personal privacy, freedom of expression, and the right to marry, for example - trump any routine goals of political administration but may be restricted in time of war or similar emergency.
Dworkin therefore conceded that rights might be restricted on grounds of policy in time of war or similar national emergency, on grounds of principle to protect another right, or to promote the basic right of equal concern and respect for all by positive discrimination in favour of disadvantaged minorities. Any of these situations clearly involves a value-judgement based on utility or some other consideration, and weakens the argument for rights as trumps.
A CRITICAL VIEW
Both liberals and conservatives in the western democracies agree that there are certain individual rights that government should respect, disagreeing only as to the nature and extent of these rights. Marxists and most critics deny such a claim, saying that no coherent system of rights can ever be determined, and that the application of rights to particular cases is invariably arbitrary. Many go further, and argue (in some cases accepting the short-term usefulness of rights to members of oppressed minorities) that the protection of individual rights exalts individual autonomy over community needs, ignores the individual's need to be part of society, and deflects the fundamental social changes that are really needed.
One significant exception was the Brazilian jurist Roberto Unger, one of the founders of Critical Legal Studies, whose "superliberalism" acknowledged not only most of the rights favoured by liberals such as Dworkin but others besides. In pre-revolutionary Europe, said Unger, law and rights were seen as means of reinforcing the existing social order: the most important shift in the history of modern legal thought may have been the move from this conception to the idea that law should rise above the social order and operate without regard to the individual's social position. The CLS movement has committed itself to a further change potentially equal in its importance, that law and rights should serve as a force against the maintenance of any scheme of social roles resistant to ordinary democratic challenge.
CLS thus denies the importance of individual rights as they are generally understood, and decries the "rule of law" as no more than a convenient fiction serving the interests of those currently in power. The idea that all citizens are entitled to "equal protection", wrote Unger, is really very limited: for one thing, it is applied only to restrict the activities of the state, and not in most cases to limit discriminatory treatment of individuals by one another. But equally significant is that fact that "equal protection" has been given to certain categories of citizen identified by the courts, such as women and racial minorities, and denied to others such as the poor or the lazy, demonstrating clearly that law is based on unspoken assumptions about the nature of society.
If the critics had their way and the existing "rule of law" and its associated rights were swept aside, would the citizen have any protection against the whims of powerful state officials, or could a Stalinist state all too easily replace the present regime? Such a risk is denied by most critics, who say government officials have no reason to exert arbitrary power and would refrain from acting unfairly because of their essential humanity. Such an argument would hardly convince those who have lived under a dictatorial government, and must cast doubt on the merits of the critics' claim. In an article in the Harvard Law Review, however, Unger argued for the creation of four types of right.
Immunity rights (broadly corresponding to the human rights widely recognised by liberals, including political rights and welfare entitlements but excluding rights over property) would establish the almost absolute claim of the individual to security against the state, other organisations, and other individuals, and so would enable him to accept a broadened practice of collective conflict without feeling his vital security endangered.
Destabilisation rights, which Unger himself found "novel and puzzling", would entitle individuals to call on the powers of the state to disrupt established institutions and social practices that have contributed to the entrenchment of injustice and have insulated themselves from normal processes of democratic change.
Market rights would give each person a conditional and provisional claim to a share in the "social capital" (that is, the economic reserves under government control, the state being the source of finance for all major projects), and would replace the absolute property rights of capitalist legal systems.
Solidarity rights, imposing correlative duties on other individuals, would be the legal entitlements of communal life, giving legal force to many of the expectations that arise from the relations of mutual reliance and vulnerability that have been neither fully articulated nor state constructed, and fostering mutual reliance, loyalty and communal responsibility.
Comments